S&S Auto Sales, Inc. v. Zoning Board of Adjustment for Borough of Stratford
On December 22, 2004, the Appellate Division in S & S Auto Sales, Inc. v. Zoning Board of Adjustment for Borough of Stratford squarely rejected an attempt on the part of a municipality to nullify a legal, nonconforming auto sales business based mostly, if not exclusively, upon the cessation of the protected use without adequately looking at and weighing such factors, as the cause of the abandonment, efforts to resume the operation “and any other objective manifestations supporting or negating the owner’s expressed intention to continue the use.” According to the court, the municipality “glaringly” omitted from its consideration, among other things, “ongoing efforts to cause a resumption of automobile sales activities” and the absence of any attempt on the part of the business operator “to use or market the property for use for any other purpose.”
The court further held that the so-called objective discontinuance test requiring termination of a nonconforming use upon the mere abandonment thereof for a set period of time, which is used in a minority of states and was employed by the lower court in this instance, “is not permissible in New Jersey under our well-settled jurisprudence” and is contrary to the dictates of the Municipal Land Use Law.
The importance of the S & S Auto Sales decision is two-fold. First, by highlighting many of the things that can (and should) be done to protect the status of a nonconforming use during times of cessation, the S & S Auto Sales is an invaluable resource for anyone who holds an interest in a legal, nonconforming use. The S & S Auto Sales case also serves to reinforce and clarify existing precedent dealing with a municipality’s power to knock out politically unpopular or generally unwanted nonconforming establishments by requiring zoning boards of adjustment to find that there has been an actual intent to abandon before terminating a nonconforming use and (in dictum) by prohibiting local ordinances that might seek to institute a per se termination rule.